A GDPR Update for Employers, Part IV: Implementing Lessons Learned From GDPR Complaints and Enforcement Actions

The European Data Protection Board (EDPB) and EU supervisory authorities have reported that they have received a large number of complaints during the first six months following the effective date of the GDPR. For example, the EDPB reported that it had received more than 42,000 complaints since May 25, 2018. The French Supervisory Authority (CNIL) reported a 20 percent increase in complaints filed during the first six months the GDPR was effective compared to the same period in 2017. Similarly, the Irish Supervisory Authority reported a 50 percent increase in data breach reports and a 65 percent increase in data protection complaints over the same period. The Irish Data Protection Commissioner also stated that several investigations of multijurisdictional complaints against large companies are being completed and that she expects major GDPR fines to be issued in 2019.

A GDPR Update for Employers, Part III: Preparing Required Data Protection Impact Assessments

Article 35 of the GDPR provides that a data protection impact assessment (DPIA) must be performed for data processing that “is likely to result in a high risk to the rights and freedoms of natural persons.” DPIAs must contain (1) a description of the processing operation along with the purpose of the processing and, where applicable, the legitimate interest for the processing; (2) an assessment of the necessity and proportionality of the processing operation in relation to the purpose; (3) an assessment of the risks to the rights and freedoms of the data subjects; and (4) the measures to be taken to mitigate the risks.

A GDPR Update for Employers, Part II: Aligning HR Practices to Comply with National Legislation Implementing the GDPR

Although the GDPR was intended to provide a uniform set of data protection requirements across the EU, the GDPR contains several provisions, known as “opening clauses,” that expressly permit individual EU countries to implement additional and/or stricter requirements for certain types of data that employers typically process.

A GDPR Update for Employers, Part I: Determining Whether Your Organization’s HR Data Processing Is Covered

Much has happened since the European Union (EU) General Data Protection Regulation (GDPR) went into effect on May 25, 2018. Many EU countries have enacted national legislation to implement and expand the requirements of the GDPR, while other developments have directly affected employers and created new obligations regarding the collection and processing of human resources (HR) data.

Working Party Confirms That Employers of All Sizes Must Maintain Article 30 Records of Processing for Human Resources Data

On April 19, 2018, the Article 29 Working Party (Working Party), which is comprised of representatives from the data protection authorities in each of the 28 European Union (EU) member states, issued a position paper stating that all employers of EU employees are required to prepare and maintain records of processing activities relating to human resources data pursuant to Article 30 of the General Data Protection Regulation (GDPR).

EU Regulator Discusses Enforcement Priorities for the GDPR

On March 27, 2018, Helen Dixon, the data protection commissioner for Ireland, outlined the enforcement priorities of the Irish data protection authority (DPA) for the General Data Protection Regulation (GDPR) during the International Association of Privacy Professionals Global Privacy Summit in Washington, D.C. The Irish DPA has been ramping up its compliance capabilities for the GDPR and will undoubtedly serve as the lead DPA for GDPR enforcement for numerous U.S. companies that are headquartered or have locations in Ireland. 

The Highest Risk Area for GDPR Compliance: Processing HR Data

With less than six months until the May 25, 2018, effective date for the European Union (EU) General Data Protection Regulation (GDPR), companies are assessing their GDPR readiness and concentrating their compliance efforts on the highest risk areas. What is the highest risk area for GDPR compliance?

EU Regulators Issue an Updated Opinion on Processing Data in the Workplace

On June 29, 2017, the Article 29 Working Party (the EU body representing the data protection authorities (DPA) of each EU member country) issued an updated opinion regarding the processing of personal data in the workplace. Recognizing that employers are rapidly adopting new information technology, the opinion updates the Working Party’s 2001 opinion regarding processing data in the employment context and 2002 opinion regarding the surveillance of electronic communications in the workplace.

Swiss-U.S. Privacy Shield to Replace the U.S.-Swiss Safe Harbor Framework

On January 11, 2017, the Swiss Federal Council and the U.S. International Trade Administration (ITA) announced that the Swiss-U.S. Privacy Shield will replace the U.S.-Swiss Safe Harbor Framework to permit U.S. businesses to transfer personal data from Switzerland to the U.S. in compliance with Swiss data protection laws. The validity of the U.S.-Swiss Safe Harbor Framework had been called into question ever since its European Union counterpart, the U.S.-EU Safe Harbor Framework, was invalidated by the European Court of Justice in October of 2015.

EU Commission Adopts EU-U.S. Privacy Shield

On July 12, 2016, the European Commission formally adopted the EU-U.S. Privacy Shield to replace the previously invalidated Safe Harbor Framework as an adequate method of transferring personal data from the European Economic Area to the United States. The U.S. Department of Commerce (DOC) will begin processing self-certification applications beginning August 1, 2016.

New Agreement on Privacy Shield Set to Become Final in Early July

On June 24, 2016, the European Commission announced that it had reached a final agreement with the United States on the terms of the EU-U.S. Privacy Shield, which will permit U.S. companies to transfer the personal data of European Union (EU) citizens to the United States in compliance with EU data protection laws. The terms of the final agreement address several concerns raised by EU regulators about the initial Privacy Shield agreement reached in February of 2016, including concerns about the U.S. government’s ability to conduct mass surveillance of transferred data, the independence of the U.S. ombudsperson who will adjudicate complaints from EU citizens regarding misuse of their data, and the lack of protections regarding data retention and transfers to other companies.

UK Votes to Leave the European Union: What Does This Mean for U.S. Companies With European Subsidiaries?

The people of the United Kingdom have spoken on the issue of whether the United Kingdom should leave or remain in the European Union (EU), and by a narrow margin have decided to leave. In fact, by region, the voters of Scotland and Northern Ireland and a large majority in the country’s economic powerhouse, London, (and most major employers and financial organizations), clearly wished to remain in the EU but have been outvoted in the referendum by parts of England which have not prospered in recent years, and which perhaps never recovered from the 2008 recession.

European Commission and U.S. Department of Commerce Publish Details Regarding the EU-US Privacy Shield

On February 29, 2016, the European Commission (EC) and U.S. Department of Commerce (DOC) published a series of documents providing details for the implementation of the new EU-US Privacy Shield framework for the transfer of personal data from the European Union to the United States. Once it is formally adopted by the EC sometime this spring, this new framework will replace the Safe Harbor scheme that was invalidated by the European Court of Justice (ECJ) in October of 2015 in the Schrems decision.

EU Extends “Qualified” Moratorium on Enforcement Actions for Data Transfers to the U.S.

On February 3, 2016, the Article 29 Working Party, the EU body representing the data protection authorities (DPA) of each EU member country, announced that all of the DPAs across the EU have agreed to extend the current moratorium on enforcement action regarding transatlantic data transfers until they have had time to scrutinize the EU-U.S. Privacy Shield data transfer program.

Europeans Agree on New Data Privacy Laws

After four years of debate and a year of uncertainty over the future of data transfers from the European Union (EU) to the United States, this week has seen a historic move towards finalizing new legislation to govern data privacy and protection laws in Europe. On December 15, 2015, negotiators from the Council of the European Union, European Parliament, and European Commission agreed on the text of the long-awaited General Data Protection Regulation (GDPR), the biggest shake up of data privacy laws in 20 years. On December 17, 2015, this text was approved by the European Parliament’s Civil Liberties Committee. The final steps will be a vote in the Parliament as whole in the New Year, followed shortly thereafter, it is hoped, by the text’s formal adoption by the Council of Ministers, the representatives of the 28 countries in the European Union.

Current Status of EU Data Transfers and Recommended Next Steps for Former Safe Harbor Companies

On October 6, 2015, the European Court of Justice (ECJ) issued its much-anticipated decision in Schrems v. Data Protection Commissioner, Case C-362/14 invalidating European Commission’s Decision 2000/520, which previously held that the Safe Harbor principles provided adequate protection for personal data transferred from the European Union (EU) to the United States. While the ECJ did not go as far as invalidating the U.S.-EU Safe Harbor Framework itself, it ruled that data protection authorities in each EU country were no longer bound by Decision 2000/520 and had the power to review the adequacy of the Safe Harbor principles under their national data protection laws. Further, the ECJ decision did not address the viability of other EU-approved methods of transferring personal data, such as standard contract clauses and binding corporate rules, but the rationale underpinning the ECJ’s decision, i.e., the ability of U.S. surveillance agencies to access personal data transferred from the EU, is equally applicable to a determination of whether other EU-approved data transfer methods provide adequate protection under EU data protection laws.

The Schrems Saga Continues: Israeli Law, Information and Technology Authority Revokes Transfer Authorizations

Citing the European Court of Justice’s (ECJ) October 6, 2015 decision in Schrems v. Data Protection Commissioner, which invalidated the EU Commission’s Safe Harbor decision, the Israeli Law, Information and Technology Authority (ILITA) announced, on October 19, 2015, that it was revoking its prior authorization of transfers of personal data from Israel to the United States based on the Safe Harbor Framework.

The Fallout from the Schrems Decision Continues

On October 14, 2015, the data protection commissioner from the German state of Schleswig-Holstein issued a position paper declaring that the use of model contract clauses by U.S. companies and European employees’ consent to transfer their personal data to the United States are invalid. This position paper, which comes on the heels of the European Court of Justice’s (ECJ) October 6 decision in Schrems v Data Protection Commissioner to invalidate the legal basis for the U.S.-EU Safe Harbor Framework, is based on the same rationale as this groundbreaking decision.

European Court of Justice Invalidates European Commission’s Safe Harbor Decision

On October 6, 2015, the European Court of Justice (ECJ) issued its much-anticipated decision in Schrems v. Data Protection Commissioner, Case C-362/14. The case considered the viability of the U.S.-EU Safe Harbor Framework, which has been applied to permit U.S. companies to transfer personal data regarding their employees and customers from the European Union (EU) to the United States in compliance with EU data protection requirements. The ECJ invalidated the European Commission’s earlier decision holding that the Safe Harbor principles provide adequate protection for personal data transferred from the EU to the United States.

Is the Safe Harbor Framework Still Safe?

On October 6, 2015, the European Court of Justice (ECJ) will issue its decision in Schrems v. Data Protection Commissioner, Case C-362/14, which may invalidate the U.S.-EU Safe Harbor Framework. The Safe Harbor Framework permits U.S. companies to transfer personal data regarding their employees and customers from the European Union (EU) to the United States in compliance with E.U. data protection requirements.

Further Delay to the EU Data Protection Regulation

January 28, 2015 marked the ninth annual European Data Protection Day. To commemorate the day, Andrus Ansip, European Commission Vice-President for the Digital Single Market and Věra Jourová, the European Union’s (EU) Commissioner for Justice, made the following (some might say, ambitious), joint statement:

It is a day to celebrate and raise awareness of the importance of protecting personal data, a fundamental right for everyone in the EU.

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